As Justice Sandra Day O’Connor wrote in Strickland v. Washington, 466 U.S. 668 (1984), “The right to counsel plays a crucial role in the adversarial system embodied in the Sixth Amendment, since access to counsel’s skill and knowledge is necessary to accord defendants the ‘ample opportunity to meet the case of the prosecution’ to which they are entitled.” “Because of the vital importance counsel’s assistance,” Justice O’Connor wrote, “this Court has held that, with certain exceptions, a person accused of a federal or state crime has the right to have counsel appointed if retained counsel cannot be obtained.”
One way prosecutors violate an individual’s constitutional right to counsel is through governmental interference. But a more common and simpler example is when counsel fails to provide adequate legal assistance. According to Strickland, “[t]he benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.”
Courts nationwide have put many obstacles in the way of the right to the effective assistance of counsel.
A client alleging ineffective assistance of counsel must prove objectively unreasonable performance and prejudice
In Strickland, the Supreme Court held that, “[w]hen a convicted defendant complaints of the ineffectiveness of counsel’s assistance, the defendant must show that counsel’s representation fell below an objective standard of reasonableness.” Objectively reasonable performance requires satisfaction of a variety of duties, including one of loyalty, one of avoiding conflicts of interest, one to consult with the client, one to zealously advocate on the client’s behalf, one to bear the necessary skill and knowledge to protect the client’s interests and liberties, and more.
In addition, a defendant claiming ineffective assistance must also show that the error impacted the outcome of the case. Stated differently, “any deficiencies in counsel’s performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution.”
These requirements make sense on the surface. They protect the individual’s right to objectively reasonable performance by counsel but also protect the justice system’s resources. Courts have eroded both parts of the test over time.
The burden on clients claiming ineffective assistance continues getting harder and harder to overcome
Courts undermine the requirement that counsel’s performance be objectively reasonable by affording more and more deference to trial attorneys. In some circumstances, courts protect the attorney’s shortcomings by calling them trial strategy. Was the defendant’s constitutional right to present a defense violated when counsel failed to call alibi witnesses during trial? Maybe. But courts might consider trial counsel’s “strategy” of simply questioning the prosecution’s witnesses to be good enough.
The requirement that defendant demonstrate prejudice has also made the uphill battle even steeper. Did the prosecution and court violate the defendant’s right to confront the witnesses against him in an egregious way? Sure. But, at least according to some courts, that makes no difference if he or she was likely guilty anyway.
Courts across the country issue decisions like this every day. But decisions like these don’t make it in the mainstream media. And we can easily overlook them with the “well he was guilty anyway” logic. But our justice system must be better than that.